It occurred to me that there is a kernel of “truth” in what Ratner said. Or more accurately, a misplaced belief, a “truth” that many lawyers may hold as self-evident: that rehearsal and practice is for lily-livered, milksop, fraidy-cats.

I say this because last week, I heard yet again, this self-evaluation from an attorney at a CLE seminar: “I’m much better when I don’t prepare.”

Says who?

You are not the best judge of your own performance. Even if members of your audience liked your presentation, or if you won your case, it is nearly impossible for you to produce an accurate self-critique.

There is a widespread myth that your inner Socrates/Atticus Finch/Shakespeare will emerge as you approach the dais to begin a presentation. I hear it all the time, or variations on it: “I don’t say um at all when I’m presenting.” “I want to be spontaneous, not stale or over-rehearsed.” (I will omit the story of hearing an attorney use the word “hemorrhoid” in the first sentence of such an unrehearsed, off-the-cuff public address to a horrified group of total strangers.)

If you are better when you don’t prepare, your standards are too low. Occasionally we are all called upon to make a presentation on short notice, when we could have been better prepared. Usually, though, we have plenty of notice, and therefore more than enough time to practice. Practice is a nuisance because it takes time, makes us face our shortcomings, and forces us to solve thorny problems.

Brian Johnson and I have a standard segment of our attorney training lectures that focuses on practice. We talk about the necessity of practicing, and about how to fit it into a busy lawyer’s life. We give suggestions for how long to practice, and how to practice specifically for different phases of a trial or presentation. Entire chapters in both of our books focus on practice! Still, when we introduce the topic in class, we can often feel discomfort rising in the audience like a cold fog. Their body language and facial expressions say, “Can’t we talk about something important?”

It is obvious that many lawyers do not practice, either for trial or for public presentations. I have two theories about that.

The first is that a minority sincerely agree with Mr. Ratner: “Practice? What’s that? Rehearsal’s for losers.”

Would they feel like a loser if they practiced? Is it uncool to prepare? They usually want to hear something important from a coach, such as how how brilliant they already are. These folks seem to worry that practicing implies that there might be something they don’t already know. I invite such attorneys to consider that everyone can improve, even the best among us. Lighten up!

My second theory is that plenty of hardworking lawyers aren’t sure how to practice, and harbor a kind of  ”practice reluctance.” Practice is, in fact, rigorous. It can be disappointing, discouraging, and confusing. Why add more of that to a lawyer’s already long work day? It is easier to blow it off, even unconsciously, than face it and knuckle down to it. You can’t skip practice; can’t go around it or under it or over it. You have to go through it and come out on the other side prepared to speak.

To overcome practice reluctance, first consider how many of your favorite celebrities practice. Athletes and musicians come to mind. They not only practice, they have coaches and master teachers standing over them, making small corrections, pushing them farther, encouraging them. Athletes and musicians practice for many hours a day.

You probably can’t give it hours, but you can carve out time for productive practice that can make a real difference. Try these three things to start.

1. Close the door to your office, silence your phone, and find the timer function on your PDA. Set it for ten minutes.
2. Stand up—and stand still—and start talking out loud. Talk about your topic for ten minutes, until the timer goes off.
3. How did it go? Jot down trigger words to help you remember what you liked. The stuff you didn’t like is just as valuable, because you’ve heard the weaker ideas and can weed them out. The rough draft of your outline is taking shape.

Repeat this process for as long as you can, an hour if you’re lucky. Repeat it as many days as you can manage, so your practice stretches over time. Repetition, as in the best lawyer training programs, is key.

Good public speaking is practiced, corrected, thoughtfully-shaped speaking. That practice takes place on your feet, standing still, gesturing, and thinking in the present moment. Being prepared, overprepared, or super-prepared is a good thing.

Billy Crystal, now the host of the Academy Awards, doesn’t mind rehearsing. He got the job.

How do you prepare? Share your stories with us.

Notice that Amanpour is speaking with only a few notes, and is extremely fluent. She’s been practicing for decades, having been a foreign correspondent for CNN for 27 years before she moved to a major network. Her eye contact is excellent, as she scans the room with smiling enthusiasm, wanting to take everyone into her story. Watch her gestures as well. They help her think of ideas and concepts, supporting the language naturally. They flow.

My only advice to her would be to add more variety of pace and volume. She could obey the Law of Opposites, the principle that we can always find contrast and variance in our delivery. If we’re high energy, we could cool it off for a paragraph. If we’re loud, we could be soft sometimes. If we’re serious, we can smile occasionally. Listeners tire more quickly if everything sounds the same from beginning to end. Here’s the video:

Click here to view the embedded video.

Jacob Frenkel wins the well-spoken award for the week. He explains Rakoff’s decision in well-crafted sentences (accompanied by gesture, of course) that are clear and concise. Also interviewed in this segment is a newspaper reporter, fairly well-spoken for someone who writes instead of talks for a living. While his explanations are clear, they are not as fluent as Mr. Frenkel. Ray Suarez is among the more well-spoken interviewers around, speaking with careful consideration in articulate phrases. At the end of this segment the audience has a good understanding of the issues. Mr. Frenkel begins speaking at 3:15 in this segment.

Click here to view the embedded video.

How can we be more aware of where we are looking? Engage in “deliberate looking.” Brian Johnson is on the road more than half of every year, and he takes in the sites of the cities he travels to. A huge museum fan, he thinks about looking—and seeing—in helpful ways.

The first step? Put away your smart phone and look around you. Give your attention to what, and who, you see.

Deliberate breathing will help your public speaking technique by calming you down, powering your voice, and flooding your brain with oxygen. Watch Brian’s short video to help you think about breathing in more depth.

Click here to view the embedded video.

C-SPAN  has a searchable online supply of events that feature speakers in every imaginable setting, from conferences to British Parliament. Last July, Prime Minister David Cameron appeared at the House of Commons to answer questions about the Murdoch scandals. He took questions  from members in quick succession. Cameron had prepared (of course) for the energetic, sometimes rowdy, exchanges, and it makes for amusing entertainment as well as a great place to see a variety of styles…good, bad, and ugly!

Also on C-SPAN, you can see and hear many people delivering speeches by reading or speaking extemporaneously. Surf around on the site to find a variety. Judge for yourself, of course, but I prefer listening to someone talk—not read—to me about 99.5% of the time.

Courtroom View Network   (CVN) is an interesting company dedicated to making video of complete trials, mostly civil proceedings that don’t grab Casey Anthony-type headlines. Some of its content is free, so it is worth going there even without a subscription. That’s where I was able to watch opening statements from the Yavapai County, Arizona, trial of James Ray, the self-help guru whose “warrior” retreat in 2009 went terribly wrong when three people died. CVN has a large database already of trials, and more are coming online all the time. Subscribers have access to complete proceedings. If you want to see your competition, your senior partners, an expert witness you are thinking of using, or just take the measure of the current crop of trial lawyers, CVN is a great source.

The Arizona Supreme Court posts video of all proceedings, and I like its content because of the camera placement—facing the lawyers making arguments. Watching this video lets you see ‘em sweat or rise to the occasion. Other selected courts that post video have links below.

The California Supreme Court has archived broadcasts, but they are from 2008 and earlier. They may have run out of funding.

The Montana Supreme Court has live streams of video of oral arguments with times posted on its web site.

The Washington Supreme Court has gavel-to-gavel coverage on Washington State Public Affairs TV Network.

If you have links to courts that post video, please send them to me. I’ll keep a list as a resource.

In July a student of mine recommended an essay in Slate called An Uh, Er, Um Essay in Praise of Verbal Stumbles. He asked me if I’d heard the theory that um is a useful, time-honored part of language worthy of preservation. Perhaps the lawyer’s common goal of banishing it from oral advocacy, courtrooms, and other professional speech, he postulated, is misguided. We could chill out about um, in other words. Rather than being an impediment to fluent speech, it helps us think.

Author Michael Erard is a staunch defender of such dysfluencies, having written a 2007 book called Uh…: Slips, Stumbles, and Verbal Blunders and What They Mean. While some of the book’s history of spoonerisms and malapropisms was amusing, his defense of um as an important part of verbal communication was tiresome. In Slate, he returns to that theme:

“But “uh” and “um” don’t deserve eradication; there’s no good reason to uproot them. People have been pausing and filling their pauses with a neutral vowel (or sometimes with an actual word) for as long as we’ve had language, which is about 100,000 years. If listeners are so naturally repelled by “uhs” and “ums,” you’d think those sounds would have been eliminated long before now.”

We humans have had lots of bad habits for more than 100,000 years. We’re still working on stamping out murder, slavery, rape, typos, war, and spelling errors, among a lengthy list of sins great and small. The idea that something is valuable because it has been around for a really long time is silly.

Language, like the rest of culture, constantly changes, and often for the better, becoming clearer and more efficient. But Erard argues for halting progress. Positive reviews on his Amazon book page pre-emptively strike at stuffy self-appointed anti-ummers who bemoan the poor state of oral communication these days. My impossible uncoolness aside, count me in with the crowd agitating for improvement. Why settle for the rudimentary noises we were making 100,000 years ago? Why not attempt to make language more fluid, or—dare I suggest—more beautifully-rendered?

Erard and his band of pro-ummers have a strange mission. They argue for what they see as the people’s speech, lowbrow and proud of it. I have no problem with lowbrow. Among the Alabama hillbillies from whom I am descended, my Uncle Bobby Wayne enjoyed playing with language, which flowed effortlessly from his brain to his mouth, unimpeded by verbal stumbles. His hilarious analogies, surprising juxtapositions, and quick-witted character sketches had nothing to do with erudition or education. No, lowbrow doesn’t bother me, but willful mediocrity does. Erard’s position that um is worthy of preservation is lazy. His elation over his 20-month-old son’s recently-uttered his first um is mysterious (he considered sending out celebratory greeting cards).

But, to try being open-minded, let’s consider whether Erard might be correct. Where shall we look for evidence? Where is um in speech we admire, speech worthy of preservation? Let’s begin with literary artists who imitate life, playwrights.

Alas—um—alack! Shakespeare, Moliere, Chekhov, Tennessee Williams, and Tom Stoppard (pardon the short list) have apparently failed to notice that inserting ums could make their characters come alive. Why not:

Um To be or um not um to um be, um that is um the um question. Um.

Or:

I’ve always um depended on the kindness like you know of um strangers.

If these writers are too highbrow, look for um in working-class conversations in plays by August Wilson or John Osborne. We don’t hear um in theater scripts because it rarely has any meaning whatsoever. Once in a great while, to signal confusion or hesitancy, a playwright may include it in a script. Um is a dull, annoying placeholder which neither advances a story nor reveals deep insight into character; it’s an uninteresting verbal habit, not worth including.

Contemplating the use of um in theater begs the question of why there are none in musicals or opera. Go ahead, try to imagine it. Sondheim: “Send in the um clowns.” Rogers and Hammerstein: “Um. Oh, what a um beautiful um morning.” Parker and Stone, The Book of Mormon: “I believe um the Lord, um God, created the um universe…” Lorenzo do Ponte by way of Mozart: “Un’ aura um amorosa um de nostro er tesoro….”

What about film? If Erard is correct that um is a fascinating aspect of language, surely film, a recent construct in human cultural and social evolution, and often intent on portraying down-to-earth reality, includes it. But screenwriters insert um into a character’s speech patterns only occasionally. Some actors—Hugh Grant, famously—insert blunders and stumbles into a script as a charming movie star mannerism that projects an amiable, common-man gawkishness.

Speechwriters, too, have missed important opportunities to spice up droning, drab prose:

Um Ask um not what, well, um your country um can um do for um you, um ask um what you can um do um for your um country. (John F. Kennedy)

Strange as it um may seem to er many, um, we now demand our right to vote according um to the um declaration of the um government under which we um er um live. (Elizabeth Cady Stanton)

If um is integral to speech, why do novelists leave it out? Why does Mark Twain ignore it, Virginia Woolf skip it, and writers from Pat Conroy to Joyce Carol Oates shun um as an illuminating part of character? Because it is more than meaningless—it wastes time. Readers would be exasperated by slogging through a thicket of ums. Serious writers, like serious speakers, do their best to put the right words into the mouths of interesting characters.

Finally, if dysfluencies are desirable in speech, why not insert them into all writing? Where are the meaningful typos and misspellings in Erard’s article? Perhaps a few strategically-placed ers could help us comprehend his meaning. It might be better to dispense with rules of good writing altogether, since humans have been writing poorly for thousands of years. Why bother with perfection in written language when our standards for speaking are lax?

People do speak without saying um, and we’ve all heard them: politicians, teachers, professors, lecturers of every stripe, talking heads, our friends, perhaps even you, esteemed reader. A fair percentage of speakers express themselves fluently and smoothly with no ums whatsoever. Using Erard’s logic, they are foolish. Inserting various noises and grunts would compensate for their eloquence.

Studies cited in Erard’s article are not supportive of his position. The Slate article refers to research that seems to prop up his point of view, but on closer examination, is not relevant. One refers to silence as an alternative placeholder in conversation (in my opinion, a better choice by far than um for thinking of what to say next). Another appears neutral as to whether there might be a better alternative to um. For example, when speaking to a toddler, um got attention, but were there other noises or words tested as well (such as calling the child by name)? The study merely states that a noise, in this case um, was effective as an attention-getting device.

A Practical Take on Um

Um is a thinking noise. We use it when we have the floor and are thinking of what to say next. In casual conversation, it usually doesn’t matter. We’ve all said um more times than we can count. When we want to be precise and persuasive, as when speaking professionally, it matters because thinking noises interrupt the flow of well-formed, intelligible sentences. Um robs us of that moment to think about our most important ideas and our passionately-held views. Um, er, like, you know, and other place holders are sloppy habits.

At our most eloquent, um disappears and speech is fluent. Think of Martin Luther King’s Dream speech. He spoke the most famous words just after he had laid aside his prepared remarks. King spoke in um-free sentences, which still ring in our collective memory. None of us recalls that he spoke from the deepest convictions of his soul like this:

Um. I um have an, a, um dream. um. That some—um—one um day um this nation will um rise um d….No um up and live out um the um true meaning of um her, no, um its creed um well, you know um that all um men are uuuuuuuh created um equal and um

Erard’s um theory disintegrates finally because he ignores two prime components of how we generate speech—gesture and prosody. Discussions of both are beyond the scope of this article, but keep in mind two crucial facts. First, the movement of our hands and arms which accompanies extemporaneous speech helps us find words, integrate concepts and ideas, and produce orderly sentences. Gesture must be part of a discussion of how we generate speech. Second, the music of our voices directly affects our word choice (see above: Uncle Bobby Wayne), and whether or not we stumble when we speak . Pedestrian delivery makes for drab choices, including um, er, like, you know, or placeholders in any language.

Playwrights, screenwriters, speechwriters, and the well-spoken among us refrain from using um because it is the linguistic equivalent of a dripping faucet: a persistent, annoying noise, always on the same pitch, the same decibel level, and usually of the same duration. Instead of making excuses for letting the lingual faucet drip on ad infinitum, fix it. Take a breath, let a moment of silence fall between thoughts, and, using gesture for expression and lung-power for melody, strive for fluency. May um become an evolutionary vestige of language, sooner rather than later. It shouldn’t take 100,000 years.

Related articles

Andrew Sullivan’s post has nothing to add, unfortunately. He merely quotes Erard verbatim.

• Let The Ums Fly (andrewsullivan.thedailybeast.com)

While waiting your turn to speak:

1. Breathe deeply, slowly and consciously to calm yourself down.

Once you stand, but before you say a word:

2. Plant your feet and stand still.

3. Raise your hands to the Ready Position—loosely touching at waist height.

4. Hear the silence in the room—this is the silence you will hear between phrases.

5. Look your audience in the eye during this moment of silence.

6. Take one final deep breath before you speak. Breathe in—> speak out.

When you begin to speak:

7. Speak in phrases, not whole sentences (think: Pledge of Allegiance rhythm).

8. Gesture immediately—place a word, concept, person, or idea “on the shelf.”

9. Emphasize a key word in every phrase of your sentence.

10. To end sentences “walk down the steps” (“with liberty and justice for all”).

checklists copyright 2011 by Johnson & Hunter, Inc. all rights reserved

While it may seem obvious to seasoned trial lawyers, it is far from clear for many students and young practitioners. There are several reasons one cannot find comfort in a canned examination:

• You cannot prepare your witness to memorize each answer for ethical reasons.
• By virtue of being human, your brain is no good at memorizing something and then reciting it aloud. When we speak words we have tentatively memorized, our recall is poor, making us sound uncertain and robotic.
• Memorization, even if we were good at it, takes a very long time. Busy professionals don’t have time to memorize long passages. Busy professionals don’t have time to memorize short passages with much flair.
• Since you wouldn’t be able to accomplish the memorization task, you would give up and try reading instead. We aren’t any better at reading than we are at memorizing. You would be stiff and boring.
• Something would happen in the courtroom to make your script obsolete. A witness would forget, get lost, or otherwise become a problem. New facts might emerge. Someone will object.

You can think of more reasons, I’m sure. But this discussion leads to an interesting question: are you acting in the courtroom? Are you trying to do what actors do, which is memorize, recite (or occasionally read) and become someone else?

Only you, of course, can answer that question. You may feel you adopt a courtroom persona when you walk into a courthouse, becoming someone other than yourself. That’s what actors do—chameleon-like, they portray different people. When you put on your suit and dress shoes, you may feel different. Fine! However you find your way into the job is your business. If you consider yourself to be doing what Johnny Depp or Scarlett Johansson do, or feel as if you are playing a role, I have no argument with it.

My concern is the execution, how you accomplish the tasks of being a trial lawyer. You are certainly performing. You are improvising as you riff off of answers, objections, and rulings, come up with new ideas, and maneuver to put your overall plan into action. You are an expert in a forum that requires you to be cognitively nimble and extremely well-spoken. Technically speaking, though, it isn’t acting.

Acting is pretending, impersonating, playing different parts, imitating, mimicking, and ultimately adopting characters other than one’s own. Actors may play one character by focusing on a physical characteristic, another by exploiting a certain way of speaking, and still another by using a tricky psychological approach. They spend entire careers honing the art of making their performances look and feel truthful and honest. In the courtroom, you are supposed to be truthful, not pretend to be so.

Actors memorize lines, written by professional writers, that make what they say witty, wise, thoughtful, illuminating, or simply entertaining. As much as your own courtroom scripts are carefully written, they are far from interesting theater or film material. Don’t assume you can write something entertaining. If your talent lies there, go to Hollywood and get a job with far more vacation.

If you feel as if you adopt an alter-ego in the courtroom, OK. Perhaps you are looking for just one consistent character instead of many. You’ll settle for the role of a lifetime and play it over and over. But beware of taking on acting and screenwriting in addition to lawyering.

To prepare for trial, practice your facts, stories, questions, and arguments by talking out loud. Your words will change over time, but you’ll grow accustomed to shaping language within the framework of the trial. Sometimes you’ll be more fluent, sometimes less. Once the trial is ready to start, talk more than you write.

Leave acting to Depp and Johansson, and scripting to Shakespeare.

Thanks to actor and author Harriet Walter, whose book Other People’s Shoes got me thinking again about this question of acting in the courtroom. Her in-depth examination of what actors are up to is down-to-earth and brilliant at the same time. Her book makes clear the difference between acting and everything else.